710 F.2d 1449 (10th Cir. 1983), 81-1751, American Land Program, Inc. v. Bonaventura Uitgevers Maatschappij, N.V.

Docket Nº:81-1751.
Citation:710 F.2d 1449
Party Name:AMERICAN LAND PROGRAM, INC., Plaintiff-Appellant, v. BONAVENTURA UITGEVERS MAATSCHAPPIJ, N.V., Peter Hund, Louis Johan Leeman, N.A.G. Van Rossum, Defendants-Appellees.
Case Date:June 24, 1983
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1449

710 F.2d 1449 (10th Cir. 1983)

AMERICAN LAND PROGRAM, INC., Plaintiff-Appellant,



Johan Leeman, N.A.G. Van Rossum, Defendants-Appellees.

No. 81-1751.

United States Court of Appeals, Tenth Circuit

June 24, 1983

Page 1450

Joseph E. Tesch of Tesch, Hufnagel & Van Dam, Salt Lake City, Utah, for plaintiff-appellant.

Marcia B. Paul, New York City (James H. Stark, New York City, with her on the brief; H. Wayne Wadsworth of Watkiss & Campbell, Salt Lake City, Utah, also on the brief), of Greenbaum, Wolff & Ernst, New York City, for defendants-appellees.

Before HOLLOWAY, McKAY and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

This is an action for slander arising out of a Dutch journalist's investigation of a land-sales scheme. American Land Program, Inc. appeals the district court's order granting a motion to dismiss for lack of personal jurisdiction over the foreign defendants. We reverse in part and affirm in part.



American Land Program, Inc. (ALP Inc.) is a California corporation that does business in various states. American Land Program, B.V. (ALP B.V.) is a Dutch corporation that conducts a wide-ranging real estate enterprise in which Dutch and other European investors are solicited to invest in American real estate. ALP B.V. makes broad claims that its investors will realize significant financial gain from direct return on the real estate and from tax advantages. ALP Inc. and ALP B.V. enjoy a degree of common ownership, and ALP Inc. brokers, markets, develops, and manages land sold to Dutch investors by ALP B.V. A significant amount of ALP Inc.'s income is derived from the fees it receives from handling these real estate transactions for ALP B.V.

Bonaventura Uitgevers Maatschappij, N.V. (Bonaventura) is a Dutch corporation which, among other things, publishes Elsevier's Weekblad (Weekblad), a weekly financial information magazine published in Holland. At the time this action arose, Peter Hund was Weekblad's real estate editor, Louis Leeman was the magazine's chief executive officer, and N.A.G. Van Rossum was its editor in chief.

ALP B.V. engaged in substantial publicity to promote its investment program. Hund became interested in the claims of financial success made by ALP B.V., and began investigating its program. In January 1979, Hund flew to the United States on assignment by Weekblad to acquire information to be used in a series of articles on ALP B.V. and the American real estate that it was marketing.

Hund spent approximately three weeks in the United States. During this time, he inspected properties marketed by ALP B.V. and interviewed a number of people, some of whom had business dealings with ALP Inc. Hund returned to Holland, and Weekblad subsequently published a series of six articles on the " 'American Land Program' (ALP)" activities, rec., vol. I, at 177, without distinguishing between the various

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American Land Program corporations. The articles alleged serious discrepancies between claims made by "ALP" and facts discovered by Hund.

ALP Inc. filed an action for defamation against Hund and Bonaventura, claiming that Hund had slandered ALP Inc. in the course of interviewing people doing business with it. This initial suit was filed in federal district court in California, in the district in which ALP Inc. maintains its principal place of business. The court dismissed the action for lack of jurisdiction because none of the alleged tortious conduct had occurred in California and personal service had not been perfected on Hund. ALP Inc. did not appeal the dismissal.

ALP Inc. subsequently filed the instant suit in the district of Utah. The complaint is virtually identical to that filed in the California action except for the addition of Van Rossum and Leeman as codefendants. The complaint alleges four causes of action against Hund and Bonaventura for slanderous statements Hund made in Utah, New York, and Texas while acting on behalf of Bonaventura. Specifically, it is alleged that Hund falsely stated to various individuals that plaintiff and its agents were making misrepresentations to investors, and that the property sold to investors was not worth as much as plaintiff claimed. Van Rossum and Leeman are named in a fifth cause of action that alleges a conspiracy to defame ALP Inc. Jurisdiction in the Utah district court is premised on diversity under 28 U.S.C. Sec. 1332 (1976). Service of process was made in Amsterdam on each of the named defendants under Federal Rule of Civil Procedure 4(d)(7) and the Utah long arm statute, Utah Code Ann. Sec. 78-27-24 (1977).

Defendants filed alternative motions to dismiss and for summary judgment. Following extensive briefing and oral argument, the trial court granted the motion to dismiss for lack of personal jurisdiction. The court based its ruling on Utah caselaw exploring the reach of Utah's long arm statute, and on the proposition that " 'First Amendment considerations surrounding the law of libel [and in this case slander] require a greater showing of contact to satisfy the due process clause than is necessary over other types of tortious...

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